Nanevski v Haskett

[2006] NSWSC 1114

CITATION:	NANEVSKI v HASKETT & ANOR (Orders have been made prohibiting the publication of any matter that may tend to identify the complainants) [2006] NSWSC 1114
HEARING DATE(S):	11 September 2006
JUDGMENT DATE :	26 October 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Summons is dismissed; 2. Plaintiff to pay the second defendant's costs.
CATCHWORDS:	CRIMINAL PROCEDURE - committal hearings - attendance of complainants for cross examination - refusal to direct complainants to attend committal hearing - error of law - failure to properly administer a discretion - serious criminal charges - anticipated “no bill” applications - need to determine which charges should be jointly tried - limitation of time - committal not for rehearsing trial - interests of justice - meaning of “substantial reasons” - whether use of prerogative powers appropriate - discretionary considerations
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Crimes (Local Courts Appeal and Review) Act 2001 Supreme Court Act 1970
CASES CITED:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 B v Gould and DPP (1993) 67 A Crim R 297 Bacon v Rose (1972) 2 NSWLR 793 Director of Public Prosecutions v O’Conner [2006] NSWSC 458 Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576 Downes v Director of Public Prosecutions [2000] NSWSC 1054 Gianoutsos v Glykis [2006] NSWCCA 137 Hanna v Kearney & Anor House v The King (1936) 55 CLR 499 Mileshkin v Commonwealth Director of Public Prosecutions (unreported, NSWSC, 28 May1998) O’Hare v Director of Public Prosecutions [2000] NSWSC 430 R v Colby (1995) 84 A Crim R 125 Sankey v Whitlam (1977) 1 NSWLR 333 Sim v Magistrate Corbett & Anor [2006] NSWSC 665 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Tez v Longley (2004) 142 A Crim R 122 Waterhouse v Gilmore (1988) 12 NSWLR 271
PARTIES:	Tom Nanevski (Pltf) Magistrate Haskett (1D) Director of Public Prosecutions (2D)
FILE NUMBER(S):	SC 14764/05
COUNSEL:	P Bodor QC (Pltf) Submitting appearance (1D) C A Webster (2D)
SOLICITORS:	North & Badgery (Pltf) Director of Public Prosecutions (2D)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Magistrate Haskett

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY, 26 OCTOBER 2006

14764/05 NANEVSKI v HASKETT & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff has been charged with numerous offences in the nature of sexual assault and robbery. The offences are alleged to have taken place between January 2002 and April 2004. The original charges involved 15 alleged victims although some of those charges are not to be pursued.

2 At the present time the plaintiff faces 34 charges which include the following alleged breaches of the Crimes Act 1900:

(a) Section 61(1) – sexual intercourse without consent;
(b) Section 94 – robbery;
(c) Section 178BA(1) – obtain monies by deception;
(d) Section 117 – larceny.

3 The nature of the alleged offences in respect of different victims is similar. In each case the complainant made contact with the plaintiff after having been made aware of an advertisement lodged by the plaintiff in a newspaper. Having made contact with the plaintiff each complainant then booked and paid for a plane flight to Sydney and booked and paid for a hotel room.

4 Only CB whose charges have been withdrawn and CI, who did not initially mention sexual assault to the police made contemporaneous complaints. The other complainants came forward in the course of police enquires. Some of them alleged illegal activities by the plaintiff at a significantly earlier period in time.

5 The matters have proceeded to committal before Magistrate Haskett. Before her Honour the plaintiff made application pursuant to either or both s 91 or s 93 of the Criminal Procedure Act 1986 for the attendance of the 15 complainants for cross-examination. The Director of Public Prosecutions consented to the attendance of nine of the 15 for cross-examination on a range of topics. However, the plaintiff argued that six further complainants, GF, SB, JJ, TB, DB, and MT should be required to attend for cross-examination at the committal proceedings about general matters such as: their occupation and reasons for travelling to Sydney, their paying for their own airfares, their booking of the hotel room, and their lack of enquiries in relation to the plaintiff’s standing.

6 The summons seeks relief pursuant to s 54(1) of the Crimes (Local Courts Appeal and Review) Act 2001 and an order pursuant to s 55(3)(a) of the Act setting aside the whole of the orders of the Magistrate refusing to direct that the relevant persons give evidence at the committal proceedings.

7 In the alternative an order is sought pursuant to s 69 of the Supreme Court Act 1970 quashing the whole of the orders of the first defendant made on 9 June 2005 refusing to direct the complainants to give evidence and an order that the matter be remitted to be determined in accordance with the law. The ground of appeal advanced in the summons is:

“That the first defendant erred in law in the exercise of her discretion in not finding that substantial/special reasons respectively existed so as to require orders being made under s 91/93 of the Criminal Procedure Act 1986 requiring the attendance of GF, SB, JJ, TB, DB, and MT to give evidence at the committal proceedings. The contrary findings made by the first defendant constituted errors of law in that those findings were not reasonably open on the evidence, such that the first defendant failed to properly exercise her discretion.”

8 In relation to each of the complainants the plaintiff raised the following matters in justification of the application

GF

· made a statement to police on 20 December 2002 about alleged loss of $15,000.00 on 29 July 2002 some 5 months earlier.

· Her account is that she meets a complete stranger at a public hospital and is persuaded to part with $15,000.00 that she has borrowed from a friend. There is no corroboration for this borrowing in the brief.

· The only enquiry the complainant makes before parting with $15,000.00 is to ask for a business card, which is not produced.

· The complainant alleges the money is snatched from her, yet she makes no outcry. She ultimately attends College Street Police Station, yet there is no evidence of this attendance in the brief. College Street used to be Police Headquarters.

· The complainant also went shopping for the plaintiff and actually purchased clothing, spending nearly $1,000.00 on the plaintiff having already parted with $15,000.00 to a stranger at a public hospital.

· There is no corroboration for her story from any witness at any of the establishments she says she attended from 27 July 2002 to 3 August 2002.

· Her statement to police is dated 20 December 2002. Interestingly, her identification statement is at first dated 29 July 2002. This is crossed out and dated 30 March 2003. This is prior to the arrest of the plaintiff. It also alleges the offence took place on 30 March 2003. It also fails to categorically identify the plaintiff.

SB

· The complainant gives her occupation in her 2 May 2004 statement about events on 29 April 2003 as hairdresser but admits to working as a personal escort under the name Courtney.

· Her suspicions were not triggered by the plaintiff stating he was a producer for Big Brother and was staying at the Versace Hotel. Her suspicions were still not aroused by a change to plans to fly at her own expense to Sydney.

· She made no check to see if the plaintiff really did work on the Big Brother TV show.

· She booked into the Stamford Hotel using her own money.

· When her suspicions are aroused at the hotel, she does not leave and does not complain. She allegedly rings “Bob” who advises her to leave. There is no statement from Bob and she does not leave, stating that the plaintiff returns.

· The complainant, by now highly suspicious, agrees to have a shower.

· She states that the plaintiff “must have broken the lock to get into the shower as I always lock the door and I know that on this occasion I did”, yet there is no evidence from the hotel to show that any locks were forced or broken in that room.

· After the plaintiff allegedly broke into and entered the bathroom and sexually assaulted the complainant, the complainant simply leaves the hotel. There is no statement from the hotel staff of complaint. The bill is paid. There is no complaint to airport security while she waits for the plane. There is no corroboration from “friend Bill” who she once again telephones. There is no medical evidence. There is a very late complaint to the police. There is also a failure to properly identify the plaintiff.

JMJ

· The complainant gave a statement on 26 May 2003 concerning an alleged serious sexual assault on 1 October 2003 (although statement states on 1 October 2004).

· The complainant uses the working name of “Evie.”

· Despite having young children this complainant books her own flight from Hobart to Sydney and her own hotel room to meet a complete stranger in a coffee shop. They talk outside a police station and go to the Novotel at Brighton. She makes no inquiry as to his business or standing. Indeed, instead of making reasonable enquiries the complainant provides the plaintiff with her personal details.

· Instead of offering employment the plaintiff requests “twenty or thirty thousand dollars.”

· The complainant admits actually ordering the room service. This forms the basis of one of the charges.

· The complainant describes a conversation and actions leading up to and including a forceful sexual assault. Even on her version, there is no real struggle, scream or attempt to flee the hotel room. When it is over the plaintiff allegedly goes into the bathroom, yet the complainant still does not leave.

· The complainant rings her sister shortly after the horrific incident but in her own words “I didn’t tell her what had happened.” There is no evidence from hotel staff as to complaint or whether she appeared upset.

· Having been sexually assaulted and safely at home, the complainant returns to Sydney to part with $8,000.00. The decision to part with $8,000.00 at St George Hospital is inexplicable behaviour. The complainant only asks his surname after parting with the money.

· Finally, the complainant decides to report the money side of the matters to the police station at Mascot but in her own words “As I didn’t know who this guy was, I didn’t report the sexual assault.” The sexual assault is not reported until 26 May 2004.

· Her statement refers to a letter from Kogarah Police. It is not part of the brief.

· The complainant states that she “only has sex with him through fear for my personal safety. Which is the same with the money … “ At no stage in her statement is there any verbal threat made to her or towards her children by the plaintiff.

TB

· The complainant was a prostitute and made two allegations of sexual assault, which charges were later withdrawn. Her statement made on 20 May 2004 concerned incidents on 12 March 2004.

· The complainant states that she works as a prostitute in Western Australia solely, yet she flies to Sydney at her own expense, books into the Stamford Hotel and even pays for the plaintiff’s breakfast, for which she has not been reimbursed.

· She makes no proper inquiry as to the plaintiff’s standing.

· The financial transaction involved is both bizarre and irregular. The complainant is a candidate for a job handing over $5,500.00 in cash to her prospective employer. Given her occupation it is a highly unlikely scenario, especially as it is punctuated by yet another sexual intercourse scene which is no longer the basis of any charge.

· She states she complained to Mascot Police. The substance of that complaint is unknown.

DBB

· The complainant’s occupation should be explored. She approaches the plaintiff as a result of an advertisement in the Personal, that is, Escort area of the Daily Telegraph. Therefore, she needs to be questioned about true reason for meeting the plaintiff, that is, Escort industry business.

· Questions are required regarding her lack of curiosity about the plaintiff’s true standing.

· The financial transaction the complainant alleges at great length in her statement is totally unrealistic. Whether someone would stay around and hand over money in these circumstances is highly questionable.

· The complainant alleges she complained to Surry Hills Police. There is no corroboration.

MMT

· The complainant was a 19 year old with no occupation. She should be questioned about any role in the Escort business, including use of aliases.

· Without any due inquiry this complainant flies from Brisbane to Sydney and meets the plaintiff in the Qantas Club. Again the complainant books into the Stamford Hotel. She undresses for the plaintiff even though she believes she is being interviewed for a job.

· The complainant had ample opportunity to leave and should be examined about her true motives in attending on the plaintiff.

· As regards the sexual assault, there is no noise or screaming or the sounds of the alleged fight heard or corroborated by anyone in the hotel.

· The complainant had a shower after the plaintiff had left. Again, no complaint was made to anyone until the provision of the statement later to the police.

9 The plaintiff submitted that the Magistrate erred by not acceding to his application to cross-examine these complainants. The following reasons are advanced why leave to cross-examine should be given:

1. The interests of justice require the attendance of the witnesses due to the multiplicity and the extremely serious nature of the charges involved;

2. The material elicited to date in cross-examination during the committal proceedings has shown that the other witnesses have generally been reluctant to reveal their involvement in the escort industry;

3. Solicitations through the escort industry and media by the police “flushed” out complainants. This gives rise to a proper avenue for inquiry;

4. Cross examination is necessary as it may result in a discharge on some of the charges;

5. The plaintiff needs also to be in a position to make meaningful submissions in respect of anticipated “no-bill” applications in respect of some of the charges and that it will be necessary also to determine what charges may appropriately be tried together without undue prejudice or be severed;

6. Numerous interests of justice that can be served, whether viewed from the prosecution or defence perspective.

10 At the committal proceedings both the DPP and the plaintiff provided the Magistrate with written submissions in relation to s 91 and s 93. The plaintiff’s submissions contained a table identifying each of the complainants and the basis for the application that she be directed to attend for cross-examination. The bases provided to her Honour are substantially the same as those recounted in the present summons. Detailed written submissions were also provided.

11 The application was debated before her Honour for a significant period during the committal proceedings. The statements of the complainants were tendered and I have had the opportunity of perusing them. Each of the women have a similar account of the events. It involves a meeting with the plaintiff, the offer of employment at extraordinarily high rates of pay together with the provision of clothes and motorcars. These discussions normally take place in a hotel room where in some cases sexual assault allegedly occurs. In some cases the women allegedly are deprived of significant sums of money.

12 There was also evidence before her Honour from a police officer who conducted an undercover operation. A recording of her encounter with the plaintiff was made and reveals a modus operandi consistent with the allegations made by the complainants. The plaintiff’s conduct with the undercover operative is similar to the conduct which he is alleged to have engaged in with the complainants.

13 Debate with respect to the calling of the complainants took place before the Magistrate on 5 April 2005, 2 June 2005 and 9 June 2005. On the last of these days the Magistrate ruled in relation to each of the complainants, identifying those whom it is agreed will be required for cross-examination and the areas proposed for cross-examination .

14 Her Honour then turned her attention to s 91 and referred to a Butterworths publication (Criminal Practice and Procedure NSW) which refers to the decision in Hanna v Kearney & Anor; Mileshkin v Commonwealth Director of Public Prosecutions (unreported, NSWSC, Studdert J, 28 May1998).

15 Her Honour identifies that the purpose of confining cross-examination has as a primary aim the limitation of the time occupied in committal proceedings and that such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are of substance. Her Honour also refers to the comment in the Butterworth’s publication which indicates that to require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute substantial reasons. Her Honour continued:

“It was also stated in that service that, ‘Committal proceedings do not constitute a criminal trial at which guilt may be determined.’
When one is looking at special reasons, under section 93 of the Criminal Procedure Act, as to why an alleged victim of an offence might be required to attend to give oral evidence in the interests of justice, again at page 6.673 of the Butterworths service, it is pointed out that the requirement of special reasons in section 93, practice 1, is a more stringent test than that of substantial reasons required by section 91(3). It stated that:
‘There is nothing special or unusual requiring the magistrate to make an order in the fact that the prosecution case relies heavily upon the account of the complainant the accused person wishes to cross-examine her.’
Again it was pointed out that it was necessary to bear in mind that committal proceedings do not constitute a criminal trial at which guilt may be determined.”

16 Her Honour then separately determined each of the applications to cross-examine. With respect to many applications the prosecution consented to cross-examination, although there was debate about the areas where questions could be asked. However, in relation to complainants where consent was not forthcoming her Honour gave particular reasons for denying the defendant’s application.

17 With respect to GF the reasons given were as follows:

“… . There was a request by the defence that she be called to give evidence as to her occupation and reason for meeting with the accused, total lack of corroboration, total lack of verified complaint, and the lack of evidence of the $15,000. But it’s clear that there was a statement from a person named Mark McMillan, affirming the loss of $15,000, her report of the loss of money and her subsequent gradual repayment.
There was also a signed witness receipt for the loan from Mr McMillan to GF, together with Mr McMillan’s bank records, confirming the withdrawal of $1,000 from an ATM, and a cash advance of $14,000 from his credit card. There was mention of a Mr Belford, a person who owned a hair salon, confirming the defendant’s request to accept a delivery for him – that is the accused – and the visit to the salon described by the complainant.
There was initially some concern about a lack of complaint about a detective. Senior Constable Bagnall confirmed that GF did make a complaint to a Detective Jones at Dee Why on 1 August 2002 in relation to an alleged incident on 29 July 2002. There was also some mention of her credit statements indicating she’d made some purchases on 31 July 2002 at Oroton, Rebel Sport, Brookvale, and Spoil Sports, Brookvale, to the value of 956-odd dollars. That refund for the relevant amounts was given on 5 August 2002.

It was submitted that there was corroboration of her loan from Mark McMillan and his bank records, and there was now corroboration of her complaint to Detective Jones and that there was no consent by the DPP to cross-examination about a lack of complaint. So in my view, bearing in mind the requirements under the legislation, there are no special reasons for her to be called.”

18 With respect to SB the reasons given were as follows:

“In respect of SB, the offences relating to her involve an allegation of sexual assault and two counts of obtaining a valuable thing by deception. There has been no agreement reached at this stage for her to be called to give evidence, so the court must not direct her attendance at the committal hearing unless of the opinion that there are special reasons why she should, in the interests of justice, attend to give oral evidence.
The areas sought for her to be cross-examined on were her occupation and involvement in the escort industry; reasons for agreeing to meet the accused; reasons for paying for fares, hotels, et cetera; lack of inquiry as to his standing; her behaviour before, during and after the alleged sexual assault; the money situation; and the lack of corroboration and complaint. The DPP in their submissions highlighted the evidence that they were relying upon in relation to various call charge records and airline records and hotel records, and also noted that SB’s daughter, TB, stated that her mother told her on her return home that the job offer was a scam, and that her mother then told her, that is, TB, in about May 2004 that the person had asked for sexual favours and was rough to her.
There was no consent by the prosecution to cross-examine SB about her occupation or involvement in the escort industry. She admitted that she was working as an escort and that the defendant contacted her in response to her advertisement.
There was no consent to cross-examination as to her behaviour around the sexual assault incident or the money situation as it was argued that the defence submissions did not point to any unusual aspects of these areas.
…
… The woman also has admitted to working in the escort industry, and she claims that she didn’t report the matter to police, that she’d had bad experience with the Queensland police before because she worked as an escort. She said she thought if she reported the matter she would be charged because she was an escort and it’s illegal in Queensland, and that she’d be then victimised by the local police because of her previous employment, and she also did not want people to know that she was working as an escort as she had children and she didn’t want them to be victimised. Her complaint was made to the police 2 May to a Constable Stuart, which was about three days later, was it not?
…
As I have said, initially there was some concern about lack of corroboration and complaint, but it seems that with further inquiry her daughter says that her mother made some complaint to her when she returned home from this alleged job offer that it was a scam, but that in May 2004, which is over a year later, she also told her daughter that sexual favours had allegedly been asked for and that the person was rough to her. The DPP argue that there was no consent to cross-examine her about her occupation or her involvement in the escort industry as she admitted that she was working as an escort, and that the defendant contacted her in response to her advertisement.
There was also no consent to cross-examination as to her behaviour around the sexual assault incident or the money situation, and it was argued that the defence submissions did not point to any unusual aspects in those areas. There was, further, no consent to cross-examination as to the delay in complaint as SB explained at paragraph 14 of her statement that she had had bad experiences with police in Queensland because she worked as an escort, and she had concerns that she would be charged and victimised because of her escort work.
Again, in looking at special reasons, a number of those queries, it seems that were initially raised, or concerns raised – the concerns that were initially raised, it seems, have now been answered to some extent by the prosecution in terms of the daughter’s statement, TB, and there is an explanation given by SB as to why she delayed in making her complaint. So really to my mind there is nothing special or unusual requiring the court to make an order in the fact that the prosecution case relies heavily upon the account of the complainant and that the accused person wishes to cross-examine her, so for those reasons I am not allowing her to be called.”

19 In respect of JMJ her Honour gave the following reasons:

“In respect of JMJ, again, there was a request by the defence to have her give evidence – be cross-examined as to her occupation, her involvement in the escort industry, reasons for agreeing to meet the accused, reasons for paying fares, hotels et cetera. Lack of inquiry as to his standing, her behaviour before, during and after the alleged sexual assault, why she returned from Tasmania after being allegedly raped, the lack of any money trail, the lack of proper complaint, the lack of corroboration and the reason for one sexual assault charge being dropped, but it seems that with further inquiries that there was some corroboration in respect of some of those matters that were initially raised.
The offences involving JMJ involved sexual assault and two counts of obtaining a valuable thing by deception. The court therefore must not direct her attendance at the committal hearing unless of the opinion that there are special reasons why she should, in the interests of justice, attend to give oral evidence. The alleged incident with JMJ, who describes her occupations as ‘home duties, former escort’ – she complained, it seems, to a Constable Reynolds on the day of the alleged theft, and there’s a further complaint to the Tasmanian police on 8 October 2003 in respect of the date of offence or offences being 1 through to 2 October 2003.
So again, in addition to the complainant and tendency coincidence evidence to the case involving JMJ included call charge records, airline records, hotel records, the complainant’s employer at the escort agency, and the escort agency receptionist, confirmed that a client had contacted JMJ as she described; a statement from a Detective Bobble from Tasmania stated that JMJ telephoned him on 8 October to say that she’d been offered employment by a Michael Paracelli in Sydney, given him money and had sex with him, and that she’d reported the offences to police in Sydney, but not the intercourse as she feared they would not believe her.
A Constable Reynolds confirmed that he took a statement from JMJ of 2 October 2003 at the Mascot police station about handing over money to a male, and Senior Constable McDonald confirmed that he sent a letter to JMJ on 20 October 2003 stating that it was a civil matter, and a copy of that letter was produced. There was no consent by the prosecution to cross-examination on the complainant’s behaviour relating to the alleged sexual assault. It was submitted there was nothing extraordinary about her allegations, particularly as JMJ was a professional escort being interviewed for a job that she would have expected to involve sex.
There was no consent to cross-examination on her reasons for her second trip from Tasmania. It was argued that that issue was covered in her statement; that, like MR, JMJ stated that she was concerned that the defendant had all of her personal details, knew where she lived, and that she had children and that he could get to her. He submitted that she said she agreed to return because she was scared, and she thought if she just went back and gave him the money, he’d go away, and, at best, if he was genuine, that he might reimburse her, and that she would have a job.
There was no consent to cross-examination as to lack of complaint as there was corroboration for her early complaint in relation to the taking of the money, and the complaint to Detective Bobble in Tasmania occurred within a week of the alleged offences. As for CdeB, there was also a submission from the prosecution that there was no basis to cross-examine JMJ about the prosecution’s reasons for not proceeding with certain charges; that the complainant had not changed her allegations and was not competent to answer questions on that topic.
So in respect of JMJ, again, taking into account the matters referred to – that I’ve previously recited in relation to special reasons, again, to my mind, there are no special reasons for her to be called.”

20 In respect of TB her Honour gave the following reasons:

“With respect to TB the charges in relation to TB are two charges of obtaining a valuable thing by deception, so again the court can direct her attendance at the committal hearing only if satisfied that there are substantial reasons why in the interests of justice she should attend to give oral evidence. A number of records again relied upon by the prosecution in their submissions in terms of the case involving TB, and it is submitted that bank records confirm a withdrawal of $5500 from her account.
Constable Collins of Mascot confirms that he went to the hotel at about 1.35 am on 13 March 2004 and recorded TB’s complaint. So initially there was a request to cross-examine her as to any lack of early complaint. But it now seems that she did complain to the police on the day of the alleged incident. It’s clear that her occupation was given as a prostitute, and it was claimed that the defendant called the brothel where she was working.
It was submitted that there was no need to further cross-examine her with respect to her occupation, and there were no charges that related to any alleged sexual offence with respect to her. It is also argued that as with CdeB, JMJ. JM, it was not appropriate to cross-examine her as to the prosecution’s reasons for not pursuing some charges – sorry, if I said there was no sexual assault allegations, I retract that. It’s clear that the prosecution was saying she had not altered her allegations and the decision not to proceed with any sexual assault charges was not and could not have been made by her.
It was argued that she should not be cross-examined as to why the prosecution might have made a decision to withdraw any sexual assault charges. It is clear that the initial request to cross-examine her related to statements made on 20 May concerning incidents that took place on 12 March 2004. As I’ve said, there is now corroboration of Constable Collins about going to the hotel on 13 March 2004. To my mind again there is no substantial reasons for her to be called to give evidence.”

21 In respect of DBB her Honour gave the following reasons:

“In terms of DBB there was an allegation of – or she complained that the accused attempted to take some $5000 but actually took $750. The alleged incident occurred on 16 April 2004. It seems that she complained to the police on 27 April 2004, some 11 days later. The DPP argued that the amount of money taken from DBB by the defendant was not as large as in the other cases, and it was not withdrawn from the bank for that purpose, and that paperwork seeking to corroborate the theft would be less compelling than in the other cases.
The DPP argued that because she did not hand over the money as stated in the defence submissions, the incident was not as unrealistic as alleged. It was argued by the prosecution that the theft was not contrary to the defendant’s modus operandi, as it occurred only after DBB had been very stubborn in her refusal to withdraw $5000 to satisfy the defendant’s accountant. There was no consent by the prosecution to cross-examination on the events around the theft incident. There was also no consent to cross-examination as to her lack of contemporaneous complaint or lack of corroboration.
There was mention of a visit by her to the Surry Hills police station, which she described in paragraph 54. It was argued that that would not have been likely to result in a record, particularly as DBB said that she did not stay to lodge an official report and her formal complaint was made a short time later, as I’ve said, some 11 days after the alleged incident took place.
In terms of there being any special reasons, then to my mind given the requirements that I’ve previously alluded to in terms of the legislation – to my mind again there is nothing special or unusual requiring the court to make an order in the fact that the prosecution case relies heavily upon the power of the complainant and the accused person wishes to cross-examine her.

22 In respect of MMT her Honour gave the following reasons:

“With respect to MMT, she claims she responded to an advertisement for a public relations/model position. The alleged sexual assault is said to have taken place on 11 March 2004 and there was no complaint to the police until August 2004, some five and a half months later. Again she gives an explanation as to why there was no complaint for that time, because she said she did not report the incident to the police because she does not like the police or trust them.
The defence argued that she should be questioned about her role in the escort business. Again, she flew from Brisbane to Sydney and booked into a hotel, and suggested she should be examined about her motives in attending on the accused. It was submitted that there was no noise or screaming or the sounds of any alleged fight heard or corroborated by anyone in the hotel. In terms of sexual assaults or allegations of sexual assaults, that would not necessarily be unusual.
In terms of looking at whether there are special reasons for her to attend court, again to my mind there is nothing special or unusual requiring the court to make an order in the fact that the prosecution case relies heavily upon the account of the complainant and the accused person wishes to cross-examine her.”

23 This Court has from time to time exercised the jurisdiction which the plaintiff seeks to invoke in the present case. In Sim v Magistrate Corbett & Anor [2006] NSWSC 665 Whealy J made orders pursuant to s 69 of the Supreme Court Act 1970 directing a magistrate to consider applications that particular persons be directed to attend committal proceedings to give oral evidence and quashing orders to the contrary which had been made by the magistrate. An examination of the reasons of Whealy J indicate that the matter proceeded on this assumption that jurisdiction to make the requested orders was available.

24 In Director of Public Prosecutions v O’Conner [2006] NSWSC 458 Johnson J made orders quashing a direction made by a magistrate in committal proceedings. Before doing so his Honour gave consideration to the nature and extent of the jurisdiction of this Court to intervene in committal proceedings. His Honour said:

“The Plaintiff seeks declaratory relief and relief in the nature of mandamus under s. 69 Supreme Court Act 1970 with respect to the direction given by the Second Defendant on 8 February 2006 under ss.91 and 93 Criminal Procedure Act 1986 . The applicable principles on such an application were stated by Hunt J (as his Honour then was) in Waterhouse v Gilmore (1988) 12 NSWLR 271 at 276-278. In order to warrant the grant of declaratory relief in relation to committal proceedings, the circumstances must be “most exceptional” or some “special reason” must be shown: Sankey v Whitlam (1978) 142 CLR 1 at 25-26, 81-82; Waterhouse v Gilmore at 277B. The undesirability of this Court intervening in committal proceedings has often been stressed: Waterhouse v Gilmore at 277B. A claim for declaratory relief is not to be used as a means of appeal except in special circumstances: Waterhouse v Gilmore at 277C-D.
As committal proceedings are purely executive in nature, it has been held that a Magistrate’s decision whether to commit for trial is not accessible to correction by this Court in the exercise of it supervisory jurisdiction at common law by way of prohibition or certiorari: Waterhouse v Gilmore at 275D-E. However, there is no obstacle to a grant of relief in the nature of mandamus under s.69 Supreme Court Act 1970 in relation to decisions given in the course of committal proceedings.
When mandamus is sought to command the relevant court to reconsider the matter before it according to law, it is usual practice to seek certiorari also in order to quash the erroneous determination and thus clear the way for the fresh consideration and determination of that matter. An inability to grant certiorari in relation to committal proceedings, however, will not stand in the way of a grant of mandamus: Waterhouse v Gilmore at 276C-D.
Relief in the nature of mandamus may be granted where there is an actual or constructive failure to exercise jurisdiction: Waterhouse v Gilmore at 276D-E; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 399, 418-420.
The requirements of procedural fairness (including the audi alteram partem rule) extend to committal proceedings and this Court may grant relief where denial of procedural fairness is demonstrated in that context: Tahmindjis v Brown (1985) 60 ALR 120 at 133-134.
There have been a number of decisions of this Court where relief in the nature of mandamus, either with or without declaratory relief, has been granted with respect to an order under s.91 and s.93 Criminal Procedure Act 1986 (or their statutory predecessors in the Justices Act 1902 ) either requiring the attendance of a witness to give evidence in committal proceedings or declining to make such an order: Foley v Molan (Levine J, 20 August 1993, unreported, BC9301863); TS v George (Studdert J, 14 April 1998, unreported, BC9802154); Hanna v Kearney (Studdert J, 28 May 1998, unreported, BC9803179); Leahy v Price (Adams J, 28 September 1998, unreported, BC9804950); Dawson v Director of Public Prosecutions [1999] NSWSC 1147; JW v Director of Public Prosecutions [1999] NSWSC 1244; O’Hare v Director of Public Prosecutions [2000] NSWSC 430; Lawler v Johnson (2002) 56 NSWLR 1; McKirdy v McCosker (2002) 127 A Crim R 217; Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 and Black v Director of Public Prosecutions [2003] NSWSC 442.
…
The Court may decline to exercise its jurisdiction to grant relief under s.69 Supreme Court Act 1970 where a statutory appeal is available: Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9; Hill v King (1993) 31 NSWLR 654 at 656, 658-9. However, such a course is not mandatory. Even where a statutory avenue of appeal was available and may have been preferable, the Court has granted prerogative relief: Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494 at 500-501 (paragraph 24). In circumstances where it is contended that there is some doubt as to whether the statutory avenue of appeal, by leave, is available in this case, I will, in due course, give initial consideration to the Plaintiff’s application for declaratory relief and relief in the nature of mandamus. Mr Arnott SC submitted that this was the primary relief sought by the Plaintiff in this case.”

25 As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person “against whom … (a) an order has been made by a magistrate in relation to the person in any committal proceedings” may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 A Crim R 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576 at 584-5.

26 An appeal with leave is only available “on a ground that involves a question of law alone.” The present case involves a challenge to the exercise by the magistrate of a discretion provided in her by the statute.

27 It is submitted that the discretion miscarried. A number of reasons for that submission are advanced which not confined to allegations that the magistrate erred in law. In effect the decision is sought to be reviewed on its merits. In these circumstances leave must be refused to bring an appeal pursuant to the Act.

28 I admit to some diffidence in otherwise considering the plaintiff’s application. When the legislature has provided a statutory but limited right of appeal in relation to committal proceedings in my opinion this Court should be reluctant to utilise its prerogative powers to intervene. The fact that such powers are available cannot be doubted (Sankey v Whitlam (1977) 1 NSWLR 333, Waterhouse v Gilmore (1988) 12 NSWLR 271). The position was comprehensively considered by O’Keefe J in O’Hare v Director of Public Prosecutions [2000] NSWSC 430 at [54] ff where, although the jurisdiction of this Court to make orders in the nature of mandamus and grant declarations was confirmed, his Honour was careful to emphasise the significance of the discretionary considerations which arise. His Honour [at 63] referred to the decision of Street CJ in Eq in Bacon v Rose (1972) 2 NSWLR 793:

“In Bacon v Rose (1972) 2 NSWLR 793 Street CJ in Eq (as he then was) considered the declaratory power of the court in relation to committal proceedings before a Magistrate in cases in which the prerogative writs of prohibition and certiorari do not apply, as was determined to be the situation in ex parte Cousens; Re Blacket (1947) 47 SR 145 (per Jordan CJ). Street CJ in Eq held that:
"There is no basis upon which it can be successfully contended that the declaration presently sought lies beyond the jurisdiction of the Court. The important question is to determine whether, as a matter of discretion, the plaintiff should be entitled to seek an exercise of the declaratory jurisdiction in circumstances such as the present." (supra at 796)
and
"It does not follow from what I have stated that declaratory relief is available as a means of appeal, either before, during, or after committal proceedings. I am concerned only with an assertion by the plaintiff that the proceedings have been instituted in the face of an express statutory pre-condition. If this claim be made out by the plaintiff then there is every reason, in the pursuit of the due and orderly administration of law, for this court to assent to its process being invoked to expose the disregard of the statutory pre-condition, and to declare the absence of justification for the plaintiff being exposed to committal proceedings". (supra at 798)”

29 O’Keefe J concluded his discussion of the question of jurisdiction in the following terms:

“The effect of these cases is to emphasise that there is jurisdiction to intervene by way of declaratory relief in committal proceedings, but that in the exercise of the Court's discretion it will be done only in an appropriate case. This view was confirmed in Connor v Sankey (1976) 2 NSWLR 570. Street CJ said:
"The declaratory jurisdiction of this court is not hedged about with the restrictions nor clouded by the complications that attach to the remedy by way of prohibition." (at 592);
and
"If the plaintiffs are able to establish that the information and summonses allege offences not known to the law, I am of the view...that the court has jurisdiction to grant declaratory relief accordingly and that it should exercise such jurisdiction. Similarly I am of the view that if the jurisdiction of the Justice of the Peace and the presiding Magistrate was not duly and properly invoked, then once again this court both has and should exercise its declaratory jurisdiction in favour of the plaintiffs." (at 594)
Moffitt P, whilst accepting the wide jurisdiction conferred on the court to intervene by way of declaration in the proceedings of an inferior tribunal said:
"It would not in my view, be a proper exercise of (the) admittedly wide power for this court to intervene in proceedings before another tribunal by declaring that such tribunal should do that which this court has no power to order, or which, in the exercise of a judicial discretion, it will decline to order." (at 622);
and
"The reason it will decline to do so is because exclusive jurisdiction upon the matter is conferred by statute upon the tribunal in question. In this setting, there is no basis for the exercise of a judicial discretion to grant declaratory relief to usurp the authority or jurisdiction of the tribunal in question by declaring what order it should make. It would be a negative and somewhat futile exercise of power by a Superior Court to decline to make an effective order to ensure what should be done, yet declare what should be done, in the hope it will be done. The mere statement of these considerations demonstrate that, if the prerogative relief sought by the plaintiff will not be given, the declaratory orders sought by them should not be made." (at 623)

30 The importance of discretionary issues in the present context was also emphasised by Shaw J in Tez v Longley (2004) 142 A Crim R 122 where his Honour said:

“The plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW).
The jurisdiction of this court to order declaratory relief, in respect of a Magistrate’s decision in a committal proceeding, is a matter of discretion, to be determined in the circumstances of each case: Bacon v Rose [1972] 2 NSWLR 793 at 796 per Street CJ in Eq. However, the High Court has held that the grant of declaratory relief in relation to committal proceedings should only occur where there are most exceptional or special reasons so to avoid fragmentation of the criminal process: Sankey v Whi tlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 82 per Mason J.
The court, therefore, has jurisdiction to intervene in the proceedings of an inferior tribunal, such as is the case here, but should not do so lightly.
Order in the nature of mandamus
The court is empowered to grant relief in the nature of mandamus pursuant to s 69(1)(c) of the Supreme Court Act 1970 (NSW). However, the court will only do so where there has been a constructive failure, on the part of the Magistrate, to exercise the Court’s jurisdiction. The correctness, or otherwise, of the Magistrate’s refusal of the accused’s application is not the question to be considered in determining whether an order in the nature of mandamus is called for: The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 243. The real question is whether or not the decision was a correct exercise of the tribunal’s power. The decision of Jordan CJ in ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 eloquently expresses this notion at 420:
…the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test,” or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes,” or “to misunderstand the nature of the opinion which it is to form,” in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. [citations omitted]
In circumstances where I, or another judicial officer may form a different opinion to the learned Magistrate in respect of the application, on the same facts, this will not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law: McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217 at [4] per Howie J:
The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all.
The Court is, therefore, required to make a finding of jurisdictional error before remitting the matter to the Magistrate for re-consideration in accordance with the law.”

The plaintiff’s argument

31 Sections 91 and 93 of the Criminal Procedure Act 1986 are in the following terms:

91 Witness may be directed to attend
(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement tendered as evidence under this Division. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor.
(2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.
(3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. A direction may not be given if the written statement has already been admitted in evidence.
(4) The written statement is not admissible in evidence in the proceedings after the direction is given unless the Magistrate withdraws the direction. This does not affect a statement admitted in evidence before a direction is given.
(5) A direction given on the application of the accused person or the prosecutor may be withdrawn only:
(a) on the application, or with the consent, of the applicant, or
(b) if the applicant fails to appear, on the application of the other party.
(6) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (3).
(7) If a person attends to give oral evidence because of a direction under this section, the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.
(8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant:
(a) was under the age of 16 years:
(i) on the earliest date on which, or
(ii) at the beginning of the earliest period during which,
any child sexual assault offence to which the proceedings relate was allegedly committed, and
(b) is currently under the age of 18 years.
(9) For the purposes of subsection (8):
child sexual assault offence means:
(a) a prescribed sexual offence, or
(b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or
(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b).
complainant , in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes:
(a) in relation to an offence under section 80E of the Crimes Act 1900 , the person who is alleged to have been the subject of sexual servitude, and
(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and
(c) in relation to an offence under section 91G of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have been used for pornographic purposes.”
“93 Victim witnesses generally not to be cross-examined
(1) Despite section 91, in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement unless the Magistrate is of the opinion that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.
(2) The regulations may make provision for or with respect to the determination of any such special reasons.”

32 The plaintiff’s fundamental argument was that the magistrate’s discretion miscarried which was said to be evidenced by a failure to give reasons to enable the decision to be seen and understood: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 279; Downes v Director of Public Prosecutions [2000] NSWSC 1054 at [14]-[19]. It was submitted that there was no perceptible decision making process, the reasons being limited to a “bare recital of some extracts from” the relevant Practice. Section 91(7) required the magistrate to reveal proper reasons for giving a direction under the section and to consider the matters which satisfy the statutory test. It was submitted that there has been a failure of the type identified in Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 at [49] resulting from the magistrate’s failure to consider the matters raised separately and in totality.

33 It is important to bear in mind that the decisions which the magistrate made were necessary in the course of the conduct of a complex committal hearing. Although complaint is made with respect to the decision by the magistrate to refuse to direct the attendance of six complainants, another six and various police officers were required to attend. In all nine witnesses have so far been cross-examined.

34 The hearing of the relevant applications proceeded over part of two days, 2 and 9 June 2005. Her Honour had before her detailed schedules of areas where the prosecution had consented to cross examination and areas which remained in dispute, together with detailed written submissions which were supplemented by oral submissions. There was a detailed discussion of relevant matters during which the prosecution indicated that it would relax its original position and agree to the examination of various persons on a variety of topics. During the course of those discussions her Honour noted the striking similarity between the alleged modus operandi of the plaintiff in his dealings with the undercover police operative and the account of the various events related by the complainants.

35 To succeed in proceedings which challenge the exercise of a discretion error must be revealed. Depending on the circumstances, if it can be shown that the primary decision-maker acted upon a wrong principle, had regard to irrelevant matters or failed to have regard to relevant matters or the decision is relevantly unreasonable, the decision may be reviewed: House v The King (1936) 55 CLR 499 at 504-505.

36 The plaintiff has not sought to argue that an error of the relevant nature was made by the magistrate. Rather the submission is that the reasons are inadequate so as to demonstrate an error requiring the intervention of this Court: Gianoutsos v Glykis [2006] NSWCCA 137 referring to Ainger v Coffs Harbour City Council [2005] NSWCA 424.

37 I do not believe the criticisms made of her Honour’s reasons in this case justify the intervention of this Court. As I have already related her Honour’s ultimate decisions were made after a lengthy process of discussion in which detailed consideration was given to the case to be made against the plaintiff. Her Honour’s reference to the Butterworth’s service enabled her to correctly identify the principles which the legislation called up for consideration. The legislative purpose is intended to limit the time occupied in committal proceedings and, in the case of s 93, to prevent court processes being used to cause unnecessary distress to victims of violent crime. This requires something special or unusual in the particular case before an order should be made: B v Gould and DPP (1993) 67 A Crim R 297.

38 I have previously related the reasons which the magistrate gave for her decision in each case. Although some of her remarks are brief she canvasses, in my opinion correctly, whether the matters advanced by the plaintiff constitute special reasons. Her Honour did not reach this conclusion until she was satisfied that issues which the plaintiff raised in relation to each complainant’s evidence had been adequately addressed by material brought forward at committal. The conclusions which the magistrate reached were both open and appropriate, and show that after detailed consideration of the prospective evidence of each witness there was nothing which would constitute substantial reasons or special reasons to justify requiring them to attend. No doubt their evidence will be attacked, if and when there is a trial, but the magistrate did not perceive, and nor can I, that on the arguments put forward the plaintiff would suffer any disadvantage except that which may arise from the fact that the complainants would be cross-examined on only one occasion rather than two.

39 With respect to the suggestion that the plaintiff may be prejudiced by the lack of cross examination, either because of the possibility that he will not be committed or may succeed in a no bill application, I do not believe there is any possibility that he would be potentially prejudiced beyond any other case where cross-examination was not allowed. Although the alleged facts of the complaints may be unusual there is a striking consistency between them. That may have been a matter justifying cross-examination but for the fact that the undercover police officer gives a similar account. Her Honour refers to this fact and was clearly influenced by it in the decision which she made.

40 In my opinion the plaintiff’s claim fails.

41 I order that the summons be dismissed. The plaintiff is to pay the second defendant’s costs.

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